743 F.2d 1372 (9th Cir. 1984), 82-3551, Albers v. Whitley

Docket Nº:82-3551.
Citation:743 F.2d 1372
Party Name:Gerald ALBERS, Plaintiff-Appellant, v. Harold WHITLEY, et al., Defendants-Appellees.
Case Date:October 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1372

743 F.2d 1372 (9th Cir. 1984)

Gerald ALBERS, Plaintiff-Appellant,


Harold WHITLEY, et al., Defendants-Appellees.

No. 82-3551.

United States Court of Appeals, Ninth Circuit

October 1, 1984

Argued and Submitted Nov. 10, 1983.

Page 1373

Gene B. Mechanic, Portland, Or., for plaintiff-appellant.

Kay Kiner James, Asst. Atty. Gen., Salem, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, CANBY and BOOCHEVER, Circuit Judges.

CANBY, Circuit Judge:

Plaintiff Albers appeals from a final judgment entered by the district court upon a directed verdict in favor of defendants. Albers v. Whitley, 546 F.Supp. 726 (D.Or.1982). The lower court's ruling was issued following a 3-day jury trial. Albers sought compensatory and punitive damages against defendants pursuant to 42 U.S.C. Sec. 1983, alleging violations of his eighth and fourteenth amendment rights. He also requested damages under the Oregon Tort Claims Act for pendent state claims. We reverse in part the district court's judgment verdict and remand for a new trial. We affirm as to the pendent state claims.


Albers was a prisoner whose claims arise from his having been shot in the knee by defendant prison officials while they were quelling a prison disturbance in "A" Block of the Oregon State Penitentiary on June 27, 1980. Cellblock "A" consists of two tiers and houses more than 200 inmates. The only reasonable mode of access between the two tiers is a connected stairway. The stairway is separated from the lower tier by a barred door. Prison officers may enter the cellblock from either end, on either tier and can control entry into either tier by means of barred walkways. Defendant Whitley was security manager of the penitentiary; defendant Cupp was superintendent; defendant Keeney was an assistant superintendent; and defendant Kennecott was a corrections officer.

On the night of June 27, 1980, some inmates in cellblock "A" became agitated about what they viewed as mistreatment of other inmates by prison guards. Because of the ensuing commotion and the inmates' tense mood an early "cell-in" order was given.

Some inmates resisted and one inmate, Richard Klenk, became particularly upset. He confronted two guards and assaulted one. After the assaulted guard left the cellblock, some inmates began to break furniture. The remaining guard was moved to a safer area by several helpful inmates but was kept hostage.

Prison authorities were notified and defendant Whitley went to speak with Klenk. A few attempts were made to demonstrate that the inmates whom the prisoners were originally concerned about were unharmed, but the disturbance continued.

Whitley checked the condition of the prison guard being held hostage and found him unharmed. He then began organizing an assault squad. At some point the prison officials discovered that Klenk had a knife and had claimed that one inmate had been killed and that others would die.

Whitley returned to the cellblock to see that the hostage guard was still unharmed, and was told by other inmates that they would protect the guard. Whitley then spoke with Albers who had left his cell at an inmate's request to see whether he could aid in quieting the disturbance. Albers asked Whitley if he would return with a key to the lower tier cells to allow those on the lower tier, including several elderly inmates, to remove themselves from the commotion.

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Whitley said that he would return with the key. When Whitley left, he noticed a barricade had been constructed, limiting access to the cellblock.

The prison officials agreed that their only feasible alternative was to arm a squad with shotguns and invade the cellblock. Cupp ordered the squad to "shoot low."

When Whitley reentered the cellblock he was followed by three armed guards. There is evidence that Albers asked for the key and Whitley screamed "shoot the bastards" and ran toward the stairs in pursuit of Klenk. The stairway was the only route to the cell where the guard was held hostage; it was also the only route by which Albers could return to his own cell.

Warning and second shots were fired. Whitley chased Klenk to the upper tier. Albers ran up the stairs behind Whitley and was shot in the knee by Kennecott. Klenk was subdued by Whitley with the help of several inmates. The hostage guard was released unharmed. One other inmate had been shot on the stairs and others on the lower tier also were harmed by gunshot. Albers sustained severe nerve damage to his lower left leg, with residual paralysis, and mental and emotional distress.

The issues on appeal are (1) whether there was evidence from which a jury could conclude that Albers was deprived of any constitutional rights; (2) whether defendants are protected by qualified immunity; and (3) whether Albers' state law claims are barred by the Oregon Tort Claims Act.


To establish a prima facie case under section 1983, Albers was required to show (1) that the conduct he complained of was committed by defendants and under color of state law, and (2) that this conduct deprived Albers of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). There is no question that defendant prison...

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